OF COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON THE UNAUTHORIZED DUPLICATION SOUND RECORDINGS By Herman Finkelstein APRIL 17, 1957. I do not know whether I have previously commented on Barbara A. Ringer's paper. It is an excellent summary of the subject. Answering the specific issues raised at page 50: 1. Should the Federal copyright statute provide protection against the unauthorized dubbing of sound recordings? Answer. I see no objection to a law which will prohibit unauthorized dubbing of sound recordings. I am not prepared, at this time, to comment on whether or not this should be a part of the copyright law. 2. Who should be the beneficiaries of this protection-the performers, the record manufacturers, or both? Answer. This question omits the idea that the author of the work may be one of the beneficiaries of the protection. 3. Should the legislation embody any effort to resolve the problems presented by the compulsory licensing provision? Answer. I am opposed to any compulsory licensing of phonograph records. However, if the compulsory license applies to the author, then it should also apply to other beneficiaries of the right, if that right is embodied in the copyright law or if it proceeds on copyright principles. 4. What formalities, if any, should be provided for sound recordings? (a) Should registration for unpublished and/or published recordings be permitted or required? (b) What should be the form of the copies deposited? (c) Should a copyright notice be required for published records? (d) If so, what should be the form and position of the notice? (e) Should the manufacturing provisions be extended to recordings? Answer. I am opposed to formalities as a condition for copyright. If protection is on noncopyright principles, I should want to examine the proposed legislation. 5. What should be the duration of copyright in a sound recording? Answer. I am not prepared to answer this question at this time. It would have to be examined in the light of the new British law. 6. Should there be a special provision covering rerecordings made by a broadcasting organization for its own broadcast or archival purposes? Answer. I do not think that this belongs in the copyright law. 7. Should remedies for infringement include: (a) Specified minimum damages? (b) Seizure and destruction of infringing copies? (c) Criminal penalties? Answer. My answer to (a), (b), and (c) should be in the affirmative if protection is granted on copyright principles. HERMAN FINKELSTEIN. By Ralph S. Brown, Jr. OCTOBER 17, 1957. The problem as narrowly stated in Miss Ringer's helpful study excludes, as I understand it, the clandestine recording of live performances. There seems to be no substantial argument in favor of tolerating the unauthorized copying of records. I suppose that if a record is out of print, and there is a demand which the original manufacturer is not willing to supply, then some social purpose is served by a state of the law which makes possible unauthorized copies. However, the ordinary run of commercial piracy cannot honestly claim this justification. The unavailability of works that are "out of print" should be dealt with, if at all, by a general scheme of compulsory licensing, and is no justification for permitting an especially flagrant form of misappropriation. On these assumptions, I believe there should be some protection against this form of unauthorized copying, and, since I am opposed to unconfined judicial expansion of misappropriation remedies, I am inclined to believe that the problem can and should be dealt with by statute. A modification of the "acoustic recording" bills of 1942-51, described on pages 34-7 of the Ringer study, seem to me to have some merit. This much of the language quoted on page 35 seems to cover the right that deserves protection. (f) To make or to procure the making, if the copyrighted work or any component part thereof be an acoustic recording, of any duplicated or recaptured recording thereof on a disc, film, tape, wire, record, or other device or instrumentality, by or from which, in whole or in part, the sound recorded on the copyrighted work may in any manner, or by any method, be reproduced or communicated acoustically; to publish and vend such recordings of sound;" The passage that I have quoted stops short of creating any right against the performance of such recordings, and therefore does not bring in by the back door the whole question of performers' rights, a matter which should be dealt with on its own merits. The question who may obtain and enforce this right seems to me best resolved by conferring it on the manufacturer. The British Act of either 1911 or 1956 contains language appropriate for this purpose. I concede that the manufacturer's contributions to the recording are less significant than those of the composers or the performers. The usual alternative, to create a right in performers, seems to me impractical because of the multiple parties that may be involved. For the problem at hand the interest of the performers in preventing piracy seems to me to be in complete harmony with the performer's interest. If performers wish to protect themselves against doubledealing by the manufacturer they should be able to insist on a covenant from him that he will obtain this copyright, and enforce it. I am not impressed by the arguments against recognizing the manufacturer as an author, or classifying a record as a writing. I think that matters of registration, notice, duration, and remedies, should fall into the general pattern of the act, whatever that turns out to be. There probably should be an exception, however, for "re-recordings made by a broadcasting organization for its own broadcast or archival purposes.' By Ralph S. Brown, Jr. RALPH S. BROWN, Jr. DECEMBER 20, 1957. Since sending you on October 17 my comments on "Unauthorized Duplication of Sound Recordings," I have read Professor Ulmer's study of the Monaco draft on neighboring rights, and reread the earlier papers by you and Dr. Bogsch. These lead me to wonder whether the matter of unauthorized dubbing should be separated from the larger question of performers' rights. I am inclined to think that it should not be. In any broader treatment of the problems, I would withdraw my recommendation that the right to prevent unauthorized copying of records should be vested in the manufacturer (by which I meant the entrepreneur who produces the recording, not the person who does the mechanical pressing, if they are not the same). The significant creative function in a performance is, after all, that of the performers. The difficulities that lie in recognizing rights in multiple parties should be met and resolved; this, as Professor Ülmer's study shows, is quite possible. By Harry G. Henn RALPH S. BROWN, Jr. FEBRUARY 24, 1958. he following are my comments on the copyright revision study entitled "The Unauthorized Duplication of Sound Recordings," by Barbara Ă. Ringer, Assistant Chief, Examining Division, Copyright Office. Miss Ringer's study, in my opinion, is excellent. Its organization is clear; its citation of authorities (as of its issue) exhaustive; and its conclusion well balanced. Until I read Miss Ringer's study, I was not aware that the term "dubbing" was used in the recording industry in the sense in which she uses the term. Since |